McClaflin v. Board of County Commissioners of Butler County, Kansas et al

Filing 15

MEMORANDUM AND ORDER sustaining defendants' 10 Motion to Dismiss. Signed by William P. Johnson on 5/3/2012. The Court dismisses plaintiff's complaint for failure to state a claim on which relief can be granted. Signed by Judge William P. Johnson on 05/03/2012. Mailed to pro se party Michele McClaflin by regular mail. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHELE MCCLAFLIN,

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Plaintiff,
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v.
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BOARD OF COMMISSIONERS OF
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BUTLER COUNTY, KANSAS et al.,
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Defendants.
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__________________________________________)

CIVIL ACTION
No. 11-1303-KHV

MEMORANDUM AND ORDER
Plaintiff, a former employee of the Butler County Jail, filed suit against the Board of County
Commissioners of Butler County, Kansas, Craig Murphy (former Butler County Sheriff), Galen
Whitaker and Rene Bender (a Butler County Human Resources employee). Plaintiff alleges
discrimination and retaliation in violation of the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621 et seq. (“ADEA”). This matter is before the court on defendants’ Motion To Dismiss (Doc.
#10) filed December 1, 2011. For reasons stated below, the court sustains defendants’ motion.
Factual Background
Plaintiff’s complaint, as clarified by her briefing on defendants’ motion to dismiss, alleges
the following:
On November 28, 2007, in this court, plaintiff filed suit against the Board of County
Commissioners of Butler County and Butler County Sheriff Craig Murphy. See D. Kan. No. 071830-JTM. Plaintiff alleged sex discrimination and sexual harassment. See Complaint (Doc. #1)
in D. Kan. No. 07-1830-JTM. Plaintiff also alleged that Butler County fired her on December 29,
2005 in retaliation for her complaints to her supervisors of sexual harassment and sex discrimination.
See id. In May of 2008, the parties settled the lawsuit. The settlement agreement provided in part

that defendants would provide a neutral reference to potential employers. See Doc. #13.
On October 5, 2011, plaintiff filed the instant action against the Board of County
Commissioners, Bender, Murphy and Whitaker. Plaintiff asserts that defendants, particularly
Bender, provided unfavorable references to potential employers in retaliation for her discrimination
complaint in 2007. See Kansas Human Rights Commission Charge at 1-2, attached to Employment
Discrimination Complaint (Doc. #1).
Discussion
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The allegations must be
enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). A complaint fails to state a
claim when it makes conclusory allegations of liability without supporting factual content. See
Iqbal, 556 U.S. at 686. A complaint must set forth sufficient facts to raise a plausible inference that
the defendant is liable for the misconduct alleged. Id. at 678. “Factual allegations must be enough
to raise a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citations omitted). A
pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of
action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at
678. Furthermore, while the court must accept all the factual allegations in the complaint as true,
it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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Because plaintiff proceeds pro se, the court construes her complaint liberally and holds it to
a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The court does not, however, assume the role of advocate for a pro se
litigant. See id.
I.

Age Discrimination Claim
As best the court can ascertain from plaintiff’s briefing on defendants’ motion to dismiss,

see Docs. #11 and #13,1 plaintiff has abandoned her claim for age discrimination by failing to set
forth any factual basis for such a claim. In any event, because plaintiff did not have an employment
relationship with defendants since the settlement of her prior lawsuit in 2008, she cannot maintain
a claim for age discrimination. See Doc. #10 at 3; Doc. #12 at 3-4. The Court therefore dismisses
plaintiff’s age discrimination claim under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim
on which relief can be granted.
II.

Retaliation Claim
The ADEA prohibits an employer from discriminating against an employee for opposing any

practice made unlawful by the Act. See 29 U.S.C. § 623(d). In her response to defendants’ motion
to dismiss, plaintiff apparently claims that in retaliation for the filing of her lawsuit in 2007,
defendants breached the settlement agreement by not providing potential employers a neutral
reference for plaintiff. Doc. #11 at 1. In essence, plaintiff’s retaliation claim relies on the theory
that any breach of the settlement agreement is retaliation because plaintiff originally filed a lawsuit
which alleged age discrimination. Under Iqbal, however, plaintiff must show more than a sheer

1

Based on plaintiff’s pro se status, the court has considered plaintiff’s surreply (Doc.
#13) even though plaintiff did not seek leave to file it.
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possibility that defendants have acted unlawfully. Iqbal, 556 U.S. at 678. It is not enough to plead
facts that are “merely consistent with” defendants’ liability. Id. (quoting Twombly, 550 U.S. at
557). Plaintiff has not alleged sufficient facts to state a plausible connection between any alleged
breach of the settlement agreement and the filing of her original lawsuit in 2007. See Kay v. Bemis,
500 F.3d 1214, 1218 (10th Cir. 2007) (factual allegations in complaint must sufficiently raise right
to relief above speculative level) (citing Twombly, 550 U.S. at 556); see also Somoza v. Univ. of
Denver, 513 F.3d 1206, 1212 (10th Cir. 2008) (essential element of prima facie case is causal
connection between protected activity and materially adverse action). The Court therefore must
dismiss plaintiff’s retaliation claim for failure to state a claim on which relief can be granted.2
Conclusion
In sum, I find and conclude that plaintiffs’ claims will be dismissed with prejudice for failure
to state a claim under Rule 12(b)(6).
IT IS THEREFORE ORDERED that defendants’ Motion To Dismiss (Doc. #10) filed
December 1, 2011 be and hereby is SUSTAINED. The Court dismisses plaintiff’s complaint for
failure to state a claim on which relief can be granted.

2

From a brief review of plaintiff’s complaint and her briefing on defendants’ motion,
she asserts a breach of the settlement agreement. See Employment Discrimination Complaint (Doc.
#1) ¶ 10 (“Based on [the] fact that not one person called Renee Bender for a reference to my
employment and experience in law enforcement since May 2008, I believe [the] contract or
[settlement] agree[ment] was violated by then Sheriff Craig Murphy and Captain Galen Witaker.”);
Response To Motion To Dismiss (Doc. #13) at 1 (court should find in plaintiff’s favor because
Butler County voluntarily breached settlement agreement); id. at 2 (asking court to throw out
settlement agreement or find that Butler County violated agreement); Response To Motion To
Dismiss (Doc. #11) at 1 (settlement agreement made in retaliation case was violated). But even if
plaintiff’s claim under the ADEA was the basis of the settlement agreement, a breach of the
agreement is a straightforward contract dispute. See Greenhill v. Spellings, 482 F.3d 569, 575 (D.C.
Cir. 2007) (Title VII). Plaintiff simply cannot state a claim under the ADEA based solely on a
breach of a settlement agreement.
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Dated this 3rd day of May, 2012.
s/ William P. Johnson
WILLIAM P. JOHNSON
United States District Judge

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